The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court is Plaintiffs' Motion for Reconsideration of the Court's imposition of terminating sanctions on Plaintiffs for their failure to prosecute.*fn1

BACKGROUND

On August 13, 2007, the Court issued a Pretrial Scheduling Order ("Scheduling Order") setting the Final Pretrial Conference ("Pretrial Conference") for October 10, 2008. In that Order, the Court specifically directed the parties to file a Joint Pretrial Conference Statement ("Joint Statement") no later than September 26, 2008. Additionally, the Court ordered that witness lists and exhibit lists were to be submitted the same day. The Court also mandated that attorneys for each party were to be present and ready to proceed at that Pretrial Conference. Finally, the Scheduling Order warned the parties that failure to cooperate in the preparation of the Joint Statement or to participate in good faith at the Pretrial Conference could result in any sanctions the Court deemed appropriate.

Plaintiffs' attorney filed a motion to withdraw as counsel on June 6, 2008, which this Court granted on August 7, 2008. In its Order the Court directed Plaintiffs to notify the Court no later than September 8, 2008, of their intention to secure counsel or to proceed pro se. On September 8, Plaintiffs filed a request for more time to seek new representation, which this Court granted via minute order on September 9, 2008. In that minute order, the Court gave Plaintiffs until September 25, 2008, to inform the Court of their election. The Court went on to state, "If the response is not received by the Court on or before 9/25/2008 at 4:00 p.m., an Order To Show Cause why sanctions (including terminating sanctions) should not be imposed will issue without further notice from the Court."

On September 25, 2008, the Plaintiffs filed a notice with the Court stating that they would proceed pro se.

At that time, Plaintiffs also requested an extension of two weeks to file their Joint Statement, witness lists, and exhibit lists. Despite the fact that those documents were due the following day, Plaintiffs had not met and conferred with Defendants regarding the joint submission of documents, nor did Plaintiffs subsequently file individual submissions.

On the morning of October 10, 2008, at approximately 7:30 a.m., Plaintiffs left a voice mail for the Court indicating that for personal reasons, specifically to attend work and to care for a child with pinkeye, they would not be attending the Pretrial Conference, which was scheduled to begin at 9:00 a.m. that morning. Plaintiffs sent emails to counsel for the Defendants stating the same.

Thus, at the Pretrial Conference, Defendants moved for terminating sanctions, which the Court granted based on Plaintiffs' failure to diligently prosecute this case. Specifically, the Court found that Plaintiffs failed to file the required pretrial documents, failed to appear at the Pretrial Conference, and engaged in a pattern of dilatory behavior over the course of this litigation.*fn2 Presently before the Court is Plaintiffs' Motion challenging its decision.

STANDARD

A court should be loathe to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). This principle is generally embodied in the law of the case doctrine. That doctrine counsels against reopening questions once resolved in ongoing litigation. Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989). Nonetheless, under certain limited circumstances, the court has discretion to reconsider its prior decisions.

A motion for reconsideration is treated as a Rule 59(e) motion if filed within ten days of entry of judgment, but as a Rule 60(b) motion if filed more than ten days after judgment. See Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). Since this motion is seeking reconsideration of a final judgment and was filed more than ten days after the entry of judgment, the Court will treat it as a Rule 60(b) motion. "Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court." Casey v. Albertson's Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).

Rule 60(b) enumerates the grounds upon which a motion for relief from an order or judgment may be made. It specifies that:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason justifying relief.

Fed. R. Civ. Proc. 60(b). Mere dissatisfaction with the court's order, or belief that the court is wrong in its decision, are not grounds for relief under Rule 60(b).

ANALYSIS

This Court had the power to dismiss Plaintiffs' case with prejudice for a failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962). "It is true, of course, that 'the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.' But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct." Id. at 632.

Moreover, "the availability of a corrective remedy such as is provided by Federal Rule of Civil Procedure 60(b) - which authorizes the reopening of cases in which final orders have been inadvisedly entered - renders that lack of prior notice of less consequence." Id.

"Accordingly, when circumstances make such action appropriate, a District Court may dismiss a complaint for failure to prosecute even without affording notice of its intention to do so or providing an adversary hearing before acting. Whether such an order can stand on appeal depends not on power but on whether it was within the permissible range of the court's discretion." Id. at 633.

In Link, the Supreme Court was "unable to say that the District Court's dismissal...for failure to prosecute, as evidenced only partly by the failure of petitioner's counsel to appear at a duly scheduled pretrial conference, amounted to an abuse of discretion." Id. There, the day before a pretrial conference, which had been scheduled just two weeks prior, plaintiff's counsel notified defendant's counsel that he would be unable to attend because "he was doing some work on some papers." Id. at 627. The next morning, plaintiff's counsel telephoned the judge and left a message stating "'that he (counsel) was busy preparing papers to file with the (Indiana) Supreme Court,' that 'he wasn't actually engaged in argument and that he couldn't be [there] by 1:00 o'clock, but he would be [there] either Thursday afternoon...or any time Friday...if it (the pretrial conference) could be reset." Id. at 628.

That Court determined, in upholding the sanction, that "it could reasonably be inferred from [counsel's] absence, as well as from the drawn-out history of the litigation, that petitioner had been deliberately proceeding in dilatory fashion." Id. at 633.

Similarly, this Court properly exercised its discretion when it imposed terminating sanctions on Plaintiffs. Plaintiffs' failure to appear at the Pretrial Conference was but one of their transgressions. During the course of this litigation, Plaintiffs, inter alia, ignored court orders, failed to provide discovery, failed to meet and confer with opposing counsel, failed to submit a Pretrial Statement, witness lists, and exhibit lists, and failed to appear at multiple hearings.

Additionally, all parties were warned in the Scheduling Order that a failure to comply with its directives could result in sanctions. Furthermore, Plaintiffs were specifically threatened with terminating sanctions in the Court's September 9, 2008, minute order. Yet, despite those warnings, Plaintiffs continued to refuse to diligently prosecute this action, such refusal culminating in their failure to appear at the Pretrial Conference that, contrary to the facts in Link, had been on the calendar for over one year. Therefore, this Court's dismissal of Plaintiffs' case was a proper sanction for Plaintiffs' failure to prosecute.

Also instructive is Ninth Circuit authority stating that "because dismissal is such a severe remedy, [the court] has allowed its imposition...only after requiring the district court to weigh several factors:

(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." Thompson v. Housing Auth. of the City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). According to that court, "The court's patience...indicates that it weighed the various factors required...before imposing the sanction of dismissal." Id. at 832. As in Thompson, this Court had been patient with Plaintiffs, granting extensions, imposing lesser sanctions on Plaintiffs' counsel, and finally warning Plaintiffs that terminating sanctions could be imminent. Such patience is sufficient to evidence that this Court weighed the appropriate factors prior to terminating this action.

Finally, it is of no small import that, contrary to the mandate of Rule 60(b), Plaintiffs have come forth with no facts sufficient to rise to the level of mistake or excusable neglect, nor have Plaintiffs provided any newly discovered evidence relevant to the Court's prior findings. Plaintiffs are simply dissatisfied with this Court's decision. Such dissatisfaction cannot justify reconsideration. Thus, Plaintiffs' Motion for Reconsideration is DENIED.

IT IS SO ORDERED.

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